The many victims of maritime paperwork fatigue may, in the wake of Deepwater Horizon, soon have even more to bewail.
The often underrated Chapter IX of the SOLAS Convention, or International Safety Management (ISM) Code, has been the product, like so many remedial projects, of accidents that changed the course of safety and quality regulation. It has now come to the attention of the United States Congress, and may become a powerful administrative weapon.
The Code, which goes by the cumbersome name of “The International Management Code for the Safe Operation of Ships and for Pollution Prevention” was incorporated into SOLAS in 1994.
Most recently (effective July 1, 2010), it has been amended to include the concept of assessment, by the company concerned, of “…all risks to…ships, personnel and the environment, and [establishment of] appropriate safeguards”.
Essentially, the risk management principles of ISO Standard 31000: 2009, are now virtually a part of the Code. The significance of the Code is that SOLAS, of which it is a part, is one of those maritime conventions that the United States has in fact ratified, and, because SOLAS is a part of the basic treaty law of all maritime nations, the most recent amendments lend themselves to universal application by means of domestic enforcement in each country.
The recent revision to the ISM Code now spells out what was always implied, but never stated: a requirement for companies to assess the risks to their vessels, personnel and the environment, arising from their operations.
It is clear that the disaster in the Gulf of Mexico will be a powerful lever in imposing a more formalised system of risk assessment, along the lines spelled out in ISM. In fact, the most recent amendments, which were laid down in IMO Resolution MSC.273 (85), in December, 2008, may well be strengthened in light of the events of April 20.
One part of the amendment, constituting Section 1.2.2, calls upon each company to “assess all identified risks to its ships, personnel and the environment and establish appropriate safeguards”. ISM therefore has a formal structure of risk assessment, now in place. Shipowners – including MODU operators – may excusably think that this doesn’t change much. However, ISM auditors, port states and flag state administrations must, effective 1 July of this year, determine that risk assessment procedures are in place – documented and fully operational.
In the United States, this can have consequences that go beyond the ISM Code. The U.S. Oil Pollution Act of 1990 (OPA 90) does not specifically provide (yet) that failure to comply with the ISM Code will constitute a violation. Congress has only just begun the messy process of reacting to the Macondo spill in all of its hideous aspects, but preliminary legislation emanating from the House Energy and Commerce Committee includes a provision that the CEO of an oil company personally attests that it has a working blow-out preventer, and an effective spill-response plan. In this somewhat different context, the legislators are taking a page from the Sarbanes-Oxley provisions, enacted after the Enron fiasco some years ago.
There is little doubt that, because ISM is already “on the books” virtually everywhere, it is an obvious vehicle for increasingly intrusive safety and quality management systems.
There are many ironies in what is now happening. For some time, safety cultures in the offshore industry were the example said to be a model for tanker and other vessel operations. The oil industry was said to have embraced the principle that the key to greater safety excellence lay in identifying, in advance, the reasons that each accident occurs.
We are now approaching the point where specific, step-by-step procedures will be monitored and graded, by external as well as internal auditors. Seven years ago, the Nautical Institute’s Dr. Phillip Anderson, supported by Captains Stuart Nicholls, John Wright and Sean Noonan, wrote a book entitled “Cracking the Code: The Relevance of the ISM Code and its Impact on Shipping Practices”. Capt. Nicholls comments, in his description of the oil industry:
“To have an operational safety system following documented procedures is one goal but to have a safety culture is quite another. Having the desire, courage, fortitude and ability to nurture a safety culture is the key to managing not only safety but also the entire business.”
The history of the ISM Code was pointed out, at a reception launching “Cracking the Code”, at the International Maritime Organisation, in October of 2003. Capt. R. B. Middleton, then the President of the Nautical Institute, observed that the tragic explosion and fire on the oil platform Piper Alpha in the North Sea, in July, 1988, was one of the birth pangs of safety management systems. It is interesting, and sad, that another offshore tragedy has occurred at the moment when risk management is coming into its own as a doctrinal part of international maritime law.